House of Lords (European Union Committee) Report on Brexit: justice for families, individuals and businesses?

The House of Lords (European Union Committee) published on 20 March 2017 its detailed 17th Report of Session 2016–17. The topic is Brexit: justice for families, individuals and businesses?

The report considers the ramifications of Brexit for the EU’s programme of civil justice cooperation introduced by the Brussels I bis, the Brussels II bis and the Maintenance Regulation, in the light of the UK Government’s view that once the UK leaves the EU there can be no jurisdiction for the Court of Justice of the EU.

The report states that “The evidence clearly illustrates that these three Regulations and the system they engender play a significant role in the daily lives of UK and EU citizens, families and businesses, who work, live, travel and do business within the EU”. It adds that “All three Regulations provide certainty, predictability and clarity about where the resulting legal dispute should be pursued. They also provide for the automatic recognition and enforcement of judicial decisions and judgments throughout the EU. They regulate a pan-European system of civil justice cooperation, which has been proved to work and reflects the UK’s legal culture. The myriad problems that they seek to address will not cease when we leave the EU”.

Interestingly, the report states that “beyond vague references to “other arrangements” the Committee was unable to discern a clear Government plan as to how the continued post-Brexit operation of these important Regulations will be secured. The Minister also referred to the utility of the Great Repeal Bill, but it is not clear how this could possibly deliver the reciprocity that is necessary for the functioning of these Regulations. We conclude that either the Government has decided not to make its position public or, as yet, has not taken full account of the impact of Brexit on the areas of EU law that these Regulations cover. In our view, the loss post-Brexit of the Brussels II [bis] Regulation and the Maintenance Regulation would be felt most profoundly both by those families that rely on their provisions, for example for the enforcement of judicial decisions, and by our family court system, which witnesses warned would struggle to cope with such radical change. Our evidence suggests that in the area of family law, adequate alternative arrangements are not immediately apparent.

As for the areas of civil law covered by the Brussels I Regulation [bis], membership of the so-called Lugano Convention does appear to offer a workable but inferior solution; but we warn that Lugano operates under an earlier and less effective iteration of the Brussels Regulation, and it is not clear if membership of the Convention will be sought, offered or acceptable to those negotiating our exit.

If the Government continues to apply its anti-CJEU stance too rigidly it will severely limit its post-Brexit options for adequate alternative arrangements. It is clear that regardless of the outcome of the Brexit negotiations, civil justice cooperation of the type dealt with by these Regulations will remain a necessity.

We are in no doubt that without adequate alternative arrangements post-Brexit there will be great uncertainty for UK businesses and citizens. Given the importance of these Regulations, we call on the Government to publish a coherent plan for addressing their post-Brexit application”.